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08/14/2012

Lawrence Solum on Formalism and Instrumentalism
Michael Ramsey

At Legal Theory Blog, Larry Solum's "Legal Theory Lexicon" features this important and useful new entry: Formalism & Instrumentalism.  From the post:

[T]he core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists (at least in part) of rules that are derived from the linguistic meaning (or semantic content) of authoritative legal texts.

2. Legal rules can be applied to particular facts.

3. Some actions accord with meaningful legal rules; other actions do not.

4. The standard for what constitutes following a rule (or not) can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.

I have only a minor quibble: I think formalism as applied to statutory interpretation has (or should have) the same meaning that it does as applied to constitutional interpretation -- that is, that the statute should be interpreted in accordance with the original meaning of its text.  The formulation in the last paragraph quoted above seems to suggest that constitutional formalism and statutory formalism are two different enterprises.  True, the difference between original meaning and plain meaning may often not be significant in statutes.  But it matters for older statutes, such as the Alien Tort Statute.  And even for more recent statutes, the Court has expressly written in terms of looking at the statute's meaning when it was enacted (see this post on the recent decision in Taniguchi v. Kan Pacific Saipan Ltd.).  Similarly, the highly formalist Scalia and Garner book Reading Law seems premised on the view that the "interpretation of legal texts" is a unified enterprise that applies to reading the Constitution and statutes.